Thursday, May 31, 2018

by Michael Dorf
Last week's SCOTUS ruling in Upper Skagit Indian Tribe v. Lundgrenresolved nearly nothing. The Court vacated and remanded a ruling of the Washington Supreme Court for reconsideration of the question whether the defendant American Indian tribe had sovereign immunity, without the impediment of a misunderstanding of prior SCOTUS precedent under which the state court had previously labored. Yet as I explain in my latest Verdict column, the case is potentially important because of arguments made in a concurring opinion by Chief Justice Roberts, joined by Justice Kennedy--arguments which, if taken seriously, undercut the basis for statesovereign immunity, as well as various other doctrines.

To oversimplify, the Chief Justice's concurrence strongly suggests that tribal sovereign immunity and its exceptions should not be constructed in a way that denies claimants whose substantive rights have been violated any effective remedy. That principle is sound, I argue, but contradicts much of the Court's own jurisprudence, including a more newsworthy case decided the same day as Upper Skagit--Epic Systems Corp. v. Lewis--in which the Court aggressively construed the federal Arbitration Act in a manner that effectively denies numerous plaintiffs effective remedies for violations of their substantive rights.

The column addresses that tension between the Court's tribal sovereign immunity doctrine and both other branches of sovereign immunity doctrine and other lines of cases. Here I want to suggest that there is another tension between how the court treats tribal sovereign immunity and how it treats state sovereign immunity--an ontological consideration. ("Ontology" is a fancy word for the nature of a thing.) State sovereign immunity has constitutional status, whereas tribal sovereign immunity is merely a matter of federal common law, thus overridable by Congress. Is that difference justified?

Wednesday, May 30, 2018

For several decades,
Professors Randy Barnett and Larry Solum have made substantial contributions to
the judicial, scholarly, and political debates over originalism (among many other
topics). It is no secret that I have had my share of disputes with both Randy
and Larry, much to my regret, and for which I accept my share of responsibility.
This blog post is a first attempt to try and mend fences, and to raise a crucially
important question about originalism (as a matter of form, I refer to all law professors discussed in this post by their first names once I identify them as law professors).

Tuesday, May 29, 2018

If you were writing a post-Civil War-era bodice-ripping romance novel set in Alabama, you couldn't do much better than to name your hero "Jefferson Beauregard Sessions" - after Confederate States of America President Jefferson Davis, and General P.G.T. Beauregard, who oversaw the Battle of Fort Sumter, which began the Civil War. Of course, a romance-novel hero probably wouldn't bear such a striking resemblance to cookie mascot Ernest J. Keebler.

Monday, May 28, 2018

by Michael Dorf
On this Memorial Day, in addition to honoring the men and women who died serving their country in the armed forces, I want to take a brief moment to remember and reflect on the legacy of two great American writers who died nearly simultaneously: Tom Wolfe and Philip Roth.

Friday, May 25, 2018

Is the American press corps -- the very same reporters and editors whom Donald Trump has called "the enemy of the American people" who are supposedly inventing "fake news" to bring him down -- going to doom us all? Is the wording of that question apocalyptic enough for you? Even dialing it back a few dozen notches, it definitely is scary and depressing to see just how badly the press is doing its job in the Trump era.

In my column here on Dorf on Law yesterday, I criticized a specific aspect of the press's performance over the past year or so. The news articles -- not editorials or op-eds -- that the major news outlets publish have fallen into a completely predictable pattern, offering desultory horse-race coverage of political issues that somehow manages both to be content-free yet also to reinforce a whole series of tropes that reporters use as crutches.

Perhaps the most puzzling of these tropes is the way that supposedly neutral and nonpartisan political reporting somehow manages always to make it seem that things are going wrong for the Democrats. Even though Trump's polling numbers have for months meandered within a very narrow range that is historically terrible, it is Democrats who are portrayed as disorganized or worse. If polling moves in the Republicans' favor, even by a little bit, we see breathless coverage of how things are worse for Democrats; but if the polls move in the opposite direction, the story is how Democrats cannot count on the good news continuing.

This is all in the context of a media environment that does not in any way seem consciously to favor Trump. Republicans are wrong to complain that the press is against them, but there is certainly no reason to think that the major periodicals and non-Fox television outlets are actually trying to do the Republicans' bidding. It is partially a matter of having been bullied into bending over backward to prove that they are not disfavoring Republicans, of course, but the pull of the conventional wisdom is turning out to be stronger than we might have ever feared.

Here, I want to explore a few ways in which the supposedly liberal press significantly assists the Trump/Republican narrative, beyond the horse-race reporting that I discussed in yesterday's post. The bottom line is that reporters appear to have decided that nothing is different in Trump's America, and that they can therefore go back to doing things exactly as they have always done them. This is both dangerous and irresponsible.

Thursday, May 24, 2018

For years, the pundit Thomas L. Friedman has been the butt of jokes, rightly mocked for his pompously trivial writing. From his op-eds in The New York Times to his books with silly/catchy titles (The World is Flat, The Lexus and the Olive Tree), his prose and his empty arguments have amounted to a relentless demonstration that middlebrow musings can pass for highbrow insights among far too many readers in this country. That he has actually won multiple Pulitzer Prizes should make anyone who has won that award reconsider what matters in life.

There are plenty of writers who are as bad as Friedman, but none combine the overweening sense of knowing how the world works based on no real expertise -- but on a lot of conversations with taxi drivers in exotic places -- with an overbearing moral superiority that would embarrass any person with an ounce of introspection. Although Friedman remains an anti-Trumper, that appears to be based on Friedman's unshakable commitment to globalism. And while Trump's mindless rejection of globalism is clearly worse than Friedman's mindless embrace of it, Friedman truly does represent the mindset that convinced plenty of voters (even including many who voted for Hillary Clinton) that American elites do not care about the consequences of their policies for the non-wealthy.

Friedman's bad writing is so bad that it inspired a clever guy to create the "Thomas Friedman Op-Ed Generator." That website allows readers to click a big green "Generate!" button, which produces what appears to be an authentic Friedman op-ed. I randomly generated faux op-eds with the headlines, "Swaziland: Lead, Follow, or Get Out of the Way," "Backlash to the Backlash," and "The Fear Factor in Benin," the latter of which included this paragraph:

"When thinking about the ongoing troubles, it's important to remember
three things: One, people don't behave like car salesmen, so attempts to
treat them as such are a waste of time. Car salesmen never suddenly
shift their course in order to fit with a predetermined set of beliefs.
Two, Benin has spent decades being batted back and forth between
colonial powers, so a mindset of peace and stability will seem foreign
and strange. And three, hope is an extraordinarily powerful idea: If
corruption is Benin's curtain rod, then hope is certainly its faucet."

As amusingly spot-on as that is, I continue to find it difficult to laugh at Friedman's self-satisfied buffoonery. As I wrote in a column early in 2013, his role in promoting the Iraq War was not merely misguided but morally repugnant, including a disgusting rant on Charlie Rose's show (a name that now carries its own moral repugnance) explaining the "real" reason that the U.S. invaded Iraq:

"And what they needed to see was American boys and girls going house to
house, from Basra to Baghdad, and basically saying, 'Which part of this
sentence don't you understand? You don't think we care about our open
society? You think this bubble fantasy -- we're just gonna let it
grow? Well suck on this!' OK? That, Charlie, was what this war was about. "

Please take a moment to consider the profound immorality of what Friedman said.

But this column is not actually about Friedman. I honestly just wanted to mention the Op-Ed Generator, but once Friedman's name is involved, it is far too easy to find oneself on a 500-word digression.

The reason I thought about the Op-Ed generator is that I have recently begun to suspect that there is such a generator that supplies political stories to The Times and The Washington Post (as well as Politico and other prominent sources). Importantly, I am talking here about what are supposed to be straight news stories, not op-ed columns. As bad a Friedman's work is, at least it is clearly labeled as opinion, and readers who take his writing seriously have only themselves to blame.

The political reporting from the top newspapers, however, has taken on a similarly eerie sense of being the product of a (rather dim) news-bot. I do not have the time (or, I confess, the talent) to create a generator of such stories, but I can at least offer an example here.

Wednesday, May 23, 2018

My column this week is about the strange hostility that some people, including conservatives, routinely exhibit toward trans people. Though so much of what we call "masculine" and "feminine" has more to do with culture than with biology, some folks seem to get very hung up on being asked to call someone a "woman" even though that someone was born with (and may still possess) a penis rather than a vagina. Among them are the same individuals who once railed against the use of the word "marriage" to describe a union between two people of the same sex.

In my column, I use Ben Shapiro as an example of the conservative hostility to trans identity, but he is representative rather than unusual. This is presumably why the president, who promised during his campaign to be a friend and protector of the LGBTQ community, has tried to exclude trans people from military service and has moved to direct the placement of trans convicts in prisons that correspond to their assigned sex at birth, except in rare cases. Although the president may not much care one way or the other, his constituents seem to be hostile to trans people.

Tuesday, May 22, 2018

So far as I can tell, only Professor Kerr and I replied. He wrote: "I've thought a lot about this issue in the last year; I'm a lot more aware of the problem than I used to be. I'm mixed on the merits of announcing a policy, though, as compared to pushing organizers to think about range of voices if the issue comes up." Whoever manages the Twitter feed for FLP responded positively to that. My reply was as follows: "That's certainly a commitment I have in ORGANIZING panels (of more than, say, 2 people); with Orin, it's something I'm happy to push w/r/t panels to which I'm invited." After a short exchange, I promised to blog about the issue, which I'm now doing.

I confess that when I first saw the tweet, I was puzzled: Why, I wondered, is this a commitment to be undertaken only by men? I then realized: Duh, because a female panelist doesn't need to. If the idea is to ensure that there is at least some gender diversity on each panel, a woman who agrees to serve on a panel provides the minimal diversity herself. So this is not a case where allies are being asked to be out front.

Monday, May 21, 2018

New York attorney and Trump 2016 donor Aaron Schlossberg is currently enjoying (which is to say, suffering) his 15 minutes of fame for his now-viral xeno- and Hispanophobic rant in a New York City Fresh Kitchen in East Midtown. What appears to have set him off was a Fresh Kitchen employee having the temerity to speak to customers and other employees in Spanish.

His tirade itself contained a "greatest hits" of alt-right clichés, each premised on errors of fact and law that would embarrass an attorney actually concerned about getting things right. But it won't get him disbarred (or even disciplined).

Saturday, May 19, 2018

By Aziz Rana
I tend to avoid social media, but felt compelled to respond in some way to Jonathan Chait's short essay in New York Magazine accusing Jedediah Purdy and me of being part of an illiberal or authoritarian left, unconcerned with Trump and suspicious of American democracy wholesale. To begin with, this characterization is clearly wrong about both the substance of Jed's work over many years and his own personal political engagements since Trump appeared on the stage. As for me, Chait seems to misunderstand the nature of my arguments in "Goodbye, Cold War," the N+1 essay he references.

Friday, May 18, 2018

Last Friday, I argued that Democrats should not preemptively talk themselves out of the idea of impeaching Donald Trump, should the opportunity ever arise. Whatever the political merits of talking about impeachment during political campaigns, it makes no sense at all to pass up an opportunity to remove a man from office who has committed impeachable offenses. Yet Democrats, at least as a rhetorical matter, seem to be setting themselves up for failure by claiming piously that "only the most serious" offenses are impeachable, which could quickly come to mean that no offense (or set of offenses) is serious enough.

In that column, I nodded to the political reality that, at least for now, Trump is in no danger of being impeached -- and certainly not convicted -- because of Republicans' decision to ignore everything that he has done. Further exploring that reality, my new Verdict column this week explains why Democrats' congenital timidity is a problem even outside of the impeachment context.

The now-standard claim among anti-impeachment Democrats is that impeachment would be "too divisive," so the better move would be to beat Trump at the polls, indirectly in the midterms this year and directly in 2020.

The primary reason to worry about this new conventional wisdom is that it would be far too cute to pass up a viable impeachment opportunity (should it ever arise, which seems more than doubtful), because one never knows what might happen that could turn the political tide. What if Melania Trump's illness were unfortunately to turn out to be more serious? What if the Democratic nominee in 2020 has a negative October Surprise (perhaps along the lines of former NY Attorney General Eric Schneiderman's shocking and horrifying crimes)? Anything could, at the right time, swing large numbers of votes Trump's way, even though he is widely despised.

But the more important point is simply that the "one option is less divisive than the other option" argument -- which, I fully admit, has more than a dollop of plausibility to it -- assumes counterfactually that Republicans and the Foxiverse would be any less on the warpath after an electoral loss than after an impeachment. Sure, they would say that impeachment was uniquely bad, should that be how things play out; but they would just as vociferously say that election fraud (or any other excuse they can invent) is uniquely bad.

Usually, I am the first one to say that degree matters. Two things being bad does not make them equally bad. In this case, however, I have become convinced that the right-wing outrage machine would turn anything that it does not like into The Worst Thing Ever. If the goal is to find the least-bad option, there might not be one.

Here, I want to add to that depressing analysis by offering some examples and thoughts about how right-wing media whip up maximum outrage in the United States these days. (It is also worth thinking about whether there are ways to blunt that outrage, even a little bit, but I am currently at a loss on that score.)

Thursday, May 17, 2018

by Michael C. Dorf
Monday's SCOTUS ruling in Murphy v. NCAAis most notable for what it did not occasion: disagreement over the validity and scope of the Court's anti-commandeering doctrine. On Wednesday I offered various hypotheses to explain why the Court's more liberal justices have come to accept a doctrine that was ideologically divisive when adopted in the 1990s. Here I discuss the issue that did divide the justices in Murphy: severability.

Murphy features three quite different approaches to severability. Which one will predominate going forward is difficult to say, however, because severability is a lot like standing, the political question doctrine, and various other procedural devices that justices appear to manipulate based on their views of the merits. A justice who believes strongly in a law's unconstitutionality will tend to want to rule against severability -- thus maximally invalidating the law -- whereas a justice with a less unfavorable view of the law will tend to deploy a narrow conception of severability, thereby preserving more of the law.

Wednesday, May 16, 2018

by Michael C. DorfMonday's SCOTUS decision in Murphy v. NCAAneed not have any long-term practical consequences for the legality of sports gambling. The Court invalidated the Professional and Amateur Sports Protection Act (PASPA) on the ground that it "commandeered" state legislatures into passing or retaining laws forbidding sports betting, in violation of a principle established in 1992 in New York v. United States. New Jersey and other states can now legalize sports betting, but Congress could achieve everything it sought to accomplish through PASPA with a new law. The flaw in PASPA was that it told states to legislate, but Congress could legislate directly by banning sports betting, with or without exceptions as permitted by state law. Doing so this way--via "conditional pre-emption"--would be a straightforward exercise of the Commerce Clause power, as was expressly recognized as a permissible alternative to commandeering in New York.

Tuesday, May 15, 2018

As the news cycle settles into its dreary day-to-day sameness even in the face of once-unthinkable scandals and policy blunders, many commentators are still trying to figure out how Donald Trump makes decisions. It is a tempting puzzle to try to solve, not only because he wields enormous power but because he talks and texts like a simpleton and thus seems as though he should be an easy person to figure out.

I am not at all sure that it matters whether anyone finally explains how to predict Trump, but I do strongly suspect that it matters if people become convinced that an incorrect theory is the key to the puzzle. For example, during much of the 2015-16 campaign, and especially during the transition period, plenty of people said that Trump would suddenly realize how important the presidency was and thus stop acting like a petulant child when it mattered. We know how that worked out.

Ever since he took office, people have been trying to figure out what Trump would do in advance of every major decision that he has had to make. Plenty of theories have been advanced, the latest of which is that Trump does what he has always said that he would do. This theory is nonsense, and it is damaging both because it leads to false predictions and because it bestows a degree of reliability and even honesty on Trump that serves to legitimize a serial liar.

Monday, May 14, 2018

by Michael Dorf
Per my usual custom, I present the exam I administered to my students after the recently concluded
semester. Submit your answers in the comments, but unless you paid tuition, don't expect me to grade them.

Friday, May 11, 2018

The man The New Yorker just last month aptly called "the fixer di tutti fixers," Rudy Giuliani, now looks more like the ranting Mr. Smallweed of Charles Dickens' Bleak House, the "baleful old malignant who would be wicked if he could," waiting for someone to shake him up and return both his neck, and his sanity, to public view. But this is no recent transformation. A closer look shows that Giuliani in his prime was every bit as great a threat to democracy and the American rule of law as his capo Donald Trump. Giuliani is, after all, the man who long ago said,

Freedom is not a concept in which people can do what they want, be anything they can be. Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do. Freedom is obedience to a legal authority.

(Except, it now appears, when it comes to Trump and a subpoena from Mueller.)

Like Richard Nixon before him, Donald Trump is now betting all of his political chips on the hope that foreign policy successes will distract everyone from his problematic relationships with the truth, the law, and basic decency.

Unsurprisingly, even in the midst of a modest success, Trump again managed to outdo even Nixon's ick factor, this time standing in front of a group of released political prisoners and praising their captor. ("I want to thank Kim Jong-un, who really was excellent to these three incredible people.")

None of Nixon's international grandstanding helped him when the walls closed in, and it is difficult to imagine even some significant foreign policy successes being enough to save another doomed presidency. The question, however, is whether Trump's presidency will be doomed by impeachment (or its specter) or by the voters.

This question has generated some interesting disagreement among people who want to rid us of Trump. Count me among those who are not having fainting spells at the very thought of impeachment.

Thursday, May 10, 2018

Professor Larry Solum
just posted an article on SSRN titled “Surprising Originalism.” On Twitter, Solum invited comments. Here are mine. In this piece, which
was the basis of a lecture at the University of Akron, Solum repeats much of what
he has said before about originalism and claims that much of the essay might surprise those not closely following recent scholarly debates over originalism. The only big surprise in this piece is that Solum's brand of originalism is indistinguishable in substance from living constitutionalism.

Wednesday, May 09, 2018

As articles accumulate that the end may
finally be nigh for the Trump administration (see here, here, or here, I find myself thinking
about Al Capone.

After a couple of short-term contempt of court convictions,
the gangster was finally convicted not of racketeering and murders, but of
failing to pay income taxes on his illegal income. For the prosecutors, this was a more expedient approach than amassing the evidence (and keeping the witnesses alive) necessary
for the more serious crimes. Is this going
to be the Trump story, for “the most corrupt administration ever” (in
Senator Elizabeth Warrren’s terms) to be brought down by undeclared campaign
contributions to porn stars?

In my column for this week, I explore the inconsistency between the arguments in two conversations, both of which presented a Free Speech issue as well as competing concerns. In one conversation, the topic was a rape app, in which victims can post the name of the fraternity where they were assaulted. In the other conversation, the topic was a racist and anti-Semitic skit that some fraternity brothers performed. I conclude that even though the protection of Free Speech comes up in one of the conversations, what actually motivated the respective positions taken is an identification with presumptively beleaguered white males.

Tuesday, May 08, 2018

Whether Michael Cohen and/or Donald Trump violated federal campaign finance law in paying $130,000 of hush money to Stormy Daniels turns on whether that payment was "for the purpose of influencing any election for Federal office." If so, then it was a campaign contribution as defined by 52 U.S.C. § 30101(8)(A)(i). If the money was a gift from Cohen then it vastly exceeded the maximum individual campaign contribution. Cohen would be on the hook for making the contribution and Trump, if he knew about it, would be on the hook for accepting it. (A "loan" from Cohen would also count. It's right there in the statutory definition.) Meanwhile, if the money came from Trump, it would count as a campaign contribution to his own campaign that was exempt from the cap but still subject to the requirement of reporting, with which Trump clearly did not comply.

Trump, Rudy Giuliani, and others in Trump's orbit have said that no "campaign funds" were used to pay Daniels, by which they mean that no funds that were officially controlled by the campaign were used to pay Daniels. Presumably that's true. However, it's not relevant to the question of whether payment to Daniels herself counts as an illegal contribution. At this point, the campaign finance issue is quite straightforward: If the payment to Daniels was "for the purpose of influencing" the 2016 presidential election, then Cohen and/or Trump broke the law.

Sooo . . . were the payments for that purpose? Common sense says yes, but a recent essay by Stephen Weissman argues that the John Edwards case indicates maybe no. I think it's more complicated.

Monday, May 07, 2018

As the Michael Cohen/Stormy Daniels/Donald Trump $130,000 "hush money" payment scandal continues to roil the airwaves, most American law students are immersed in final exams, with the July 2018 bar exam looming for this month's law grads, and the Multistate Professional Responsibility Exam (MPRE) either just behind them or ahead for August 2018. Many are dutifully working through hypotheticals in professional responsibility - the law governing lawyers - which is among the most frequently bar-examined subjects, and is obviously crucial to the ethical discharge of an attorney's obligations. Meanwhile, the real-world behavior of highly-placed lawyers, including Michael Cohen (who now has his own lawyer, David Schwartz) and Rudy Giuliani, who recently joined Trump's legal team, has become so central to our understanding of the issues that even MSNBC commentators like Rachel Maddow have had to take a break from covering the antics of the major players - like Trump himself - to hold informal on-air "law schools" to try to unravel the issues for their viewers.

With that in mind, please consider the following hypothetical PR/election law/contract law "crossover" question...

Friday, May 04, 2018

Conservatives are eager to attack plenty of things that liberals are willing to defend, and vice versa. Abortion rights, climate policies, progressive taxes, and so on are all the subjects of fierce debate by both sides. There is, however, one huge topic on which the two sides are notably uneven in their passion.

What is the one thing that every conservative is eager to attack yet too many liberals are oh-so-hesitant to defend? Unions. To conservatives, labor unions are a reliable bete noire, even though their most passionate base of voters is ironically made much worse off because of the decline of unions. Unions exist in the conservative imagination as an embodiment of everything bad about liberalism. For many liberals, however, the response to attacks on unions is to uncomfortably clear their throats and change the subject.

Unsurprisingly, this has led us to the brink of an abyss, with declining union membership amid a wave of anti-union laws in state after state (even in the formerly labor-dominated state of Michigan). Even worse, the U.S. Supreme Court is poised to deal a near-death blow to public sector unions -- the only part of the labor movement that still has significant membership and power, given how successfully Republicans have attacked private-sector unions -- in Janus v. American Federation of State, County and Municipal Employees.

This asymmetry in conservatives' anti-union passion and liberals' half-hearted defense of organized labor shows up over and over again, and it is worth thinking about not only for the economic harm that it causes to nearly everyone but also for its consequences to the political system.

Thursday, May 03, 2018

The Supreme Court is not scheduled to hand down any more opinions until May 14. From that day until the end of June, the Court is likely to issue country-changing decisions in a number of different areas of the law. If the Justices are going to go on a spree striking down statutes, executive orders, state redistricting, and police practices, they'll have to do it through the Living Constitution.

Wednesday, May 02, 2018

And now, in coloring-book form, a man who needs no introduction, at least for those who have been following Trump-Russia, or own a television. James Comey's book tour, in support of his memoir A Higher Loyalty: Truth, Lies, and Leadership, released April 17, 2018, put him back in the national spotlight. But he has hardly been out of it since July 5, 2016, when he released the now-infamous statement about the investigation of Hillary Clinton's use of a private email server.

by Michael Dorf
In my Verdict column this week, I discuss the recent Ninth Circuit ruling in Naruto v. Slater, which affirms the district court's dismissal of a copyright lawsuit brought by PETA on behalf of a macaque (Naruto) who snapped a selfie that the defendants then used in a book. I explain what the court held and offer some criticisms of PETA's decision to bring the lawsuit in the first place. Given all of the horrific things that humans do to nonhuman animals, copyright infringement seems like it ought to have relatively low priority. I end on a cautiously optimistic note, pointing out that lawsuits that fail in court can nonetheless bring beneficial publicity to a cause. While the cause of monkey copyrights is silly, perhaps the lawsuit will bring some attention to habitat loss.

Meanwhile, my column mostly just reports on rather than evaluates the reasoning of the majority and concurring opinions in Naruto. Here I'll critique them a bit by pointing out the judges' speciesism.

Tuesday, May 01, 2018

by Michael Dorf
Largely overshadowed by the oral argument in the Travel Ban case last week, the Supreme Court issued a potentially important opinion in Jesner v. Arab Bank,further limiting the availability of relief for plaintiffs suing under the Alien Tort Statute (ATS). Although I disagree with the thrust of the Court's restrictive ATS jurisprudence in recent years, I'll have some words of praise for Justice Kennedy's majority opinion in Jesner, because it makes conceptual sense out of what had been a deep puzzle since Justice Souter's 2004 majority opinion in Sosa v. Alvarez-Machain. Before reading on, be forewarned that this is a fairly wonky analysis aimed chiefly at Fed Courts nerds.